Sanctuary as a refuge from state justice

Source: (2006) In, Dennis Sullivan and Larry Tifft editors, “Handbook of Restorative Justice” A Global Perspective. London and New York: Routledge. Taylor & Francis Group pp.198-205

In the context of contemporary justice the rationally, morally or psychologically deficient transgressor is viewed as incapable and unworthy of the opportunity to negotiate their return to society. In each of these models the transgression is viewed not as an isolated act but as the symptom of a condition that renders the transgressor incapable of participating in the justice process. These are fixed models that transfer the resolution of transgression to either legal or medical professionals. The ownership of conflict, and it is important to remember that crime is a form of conflict, has increasingly been transferred from the community to the bureaucratic state. This shift of ownership has transformed the transgressor from a moral agent capable of carrying out a dialogue of justice with fellow members of the community to a passive participant whose future is determined by a prescriptive formula based on the criminality of the transgression and the deficiency that caused it. The prescriptive nature of contemporary criminal justice precludes participation by the community as well. In bureaucratic justice direct participation in the process by either the transgressor or the community is seen as potentially compromising the fairness, reasonableness and consistency of the law. The legitimacy of criminal law in the modern state is believed to be dependent upon the presence of these three qualities in justice process. Contemporary criminal justice is defined by process rather than outcome. In order to create a more participatory system of justice, law must be conceived as a communicative act. Herman Bianchi in his discussion of justice as sanctuary suggests that such a communicative conception of law encourages people – law in hand – to discuss the main problems of their social lives. By engaging in such a discourse, members of a society keep alive the sense that law unites them rather than separates them. The social framework most conducive to the establishment and maintenance of communicative law is the sanctuary. (excerpt)